Opinion
Nos. 05-03-00714-CR, 05-03-00715-CR, 05-03-00716-CR
Opinion Filed May 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-71973-UP, F02-72028-VP, and F02-49707-UP. Affirmed.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
OPINION
Enrique Castro Juarez pleaded nolo contendere to three charges of aggravated sexual assault of a child, and the trial court sentenced him to life in prison. On appeal, he argues his pleas were involuntary. Because the issues in this case are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm. In April 2001, A.M., appellant's eight-year-old step-granddaughter told her mother appellant had been sexually abusing her. The police were notified and appellant was arrested. Appellant consented to a search of his house, and police seized five digital tapes depicting sexual activity between appellant and A.M. and one of A.M.'s friends. Later, A.M.'s family found sixteen more tapes in the garage that depicted appellant and the two girls in "lewd and lascivious sex acts." Appellant sought to suppress the videotapes seized by the police, and the trial court denied the motion. Appellant then entered open pleas of nolo contendere to the charges but reserved his right to appeal the suppression ruling. At the punishment hearing, the State offered the sixteen tapes found by family members, and appellant's counsel objected that she believed all of the tapes had been seized by police pursuant to appellant's consent to search. The trial court overruled the objection and admitted the evidence. After sentencing, appellant's counsel filed a motion for new trial, asserting that she "had no knowledge . . . that some of the tapes were actually turned over to the police by family members" and not subject to the motion to suppress. The motion also asserted that "the case would not have proceeded to a plea" had appellant known that not all the tapes were subject to the objections raised at the suppression hearing. After a hearing, the trial court denied the motion for new trial. Appellant's first issue is stated as follows: "The trial court did not erroneously deny a motion to suppress evidence which was seized pursuant to the defendant's consent after he requested a lawyer." In a single sentence and citing a single case, appellant "concedes this issue" and moves on to his second ground of review. In his second issue, appellant brings two complaints asserting trial court error in denying his motion for new trial in which he sought to withdraw his plea. He complains his pleas were induced by the "expectation of meaningful appellate review" based on (1) mistaken legal advice of counsel and (2) a mistaken belief about the evidence. In reviewing these issues, we examine whether the trial court's decision to deny the motion for new trial was so outside the zone of reasonable disagreement that it constituted an abuse of discretion. See State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim. App. 1993); Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim. App. 1992). At a hearing on a motion for new trial, the trial court is the sole judge of witness credibility. See Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). We begin with appellant's complaint regarding legal advice. Appellant argues his plea was involuntary because he based his decision to plead nolo contendere on "counsel's erroneous representations that he had a valid basis for an appeal" of his motions to suppress. Appellant attempts to use his concession of error in issue one to obtain a reversal on this issue. We are not persuaded. Although not specifically phrased as such, the issue is a claim of ineffective assistance of counsel. When a defendant challenges the voluntariness of his plea entered upon the advice of counsel, contending that his counsel was ineffective, voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and, if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). Here, appellant argues trial counsel (who also represents appellant on appeal) gave him "incorrect" legal advice. In particular, he asserts counsel advised he had a valid basis to contest the seizure of the tapes "because he had requested a lawyer before the police officer asked him to sign a consent to search." Appellant asserts his "likelihood of prevailing on this point is slim to none," leaving him with "no appellate remedy." While trial counsel's disregard of well-established law might, under appropriate circumstances, constitute ineffective assistance, appellant has not shown that the law regarding his consent issue is well-settled. Instead of engaging in a legal analysis with respect to the merits of his consent issue, appellant simply concedes the trial court was correct in denying the motion to suppress and relies on a single case out of another court of appeals. He does not even attempt to argue how this law applies to the particular facts of this case. A single citation to another intermediate appellate court does not persuade us that appellant's advice fell below prevailing professional norms. See Cannon v. State, 691 S.W.2d 664, 679-80 (Tex.Crim.App. 1985) ("It is rudimentary that courts are not bound by decision of other courts of equal jurisdiction. The power to establish precedent is lodged in courts of superior jurisdiction."). Moreover, the opinion relied on acknowledged that it was the first Texas case to "address the issue of whether asking the accused for consent to search after he has invoked his right to counsel, constitutes re-interrogation under Miranda." Jones v. State, 7 S.W.3d 172, 174 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). We conclude appellant has not shown counsel's performance was deficient. Appellant next argues that at the time he entered his nolo contendere pleas, he believed all the videotapes were subject to the motion to suppress and appellate review. He argues his mistaken belief rendered his pleas involuntary. Again, we disagree. At the new trial hearing, appellant testified he believed all videotaped evidence that the State had in its possession was obtained pursuant to his consent to search. Appellant testified that had he known the State possessed tapes not subject to the motion to suppress, he "would have probably asked for a jury trial." However, on cross-examination, appellant testified as follows:
[PROSECUTOR]: I'm showing you a transcript from that [suppression] hearing, okay? And we're gonna go to page 16, and I am on direct with Detective Lesher, okay? Remember that? Detective Lesher is the guy that got the consent from you, right?
[DEFENDANT]: Yes.
[PROSECUTOR]: On line 7 I said, "What happened when you went to the house? Did you find — What did you find relating to this case?" And he goes on for several lines talking about everything that he found. He found sixty-seven videotapes in the living room. Of course, a lot of those were just tapes, like movies and things like that. There were four digital videotapes found in the master bedroom closet, hidden in some clothing. You had hidden those tapes, right?
[DEFENDANT]: Correct.
[PROSECUTOR]: My next question is, "Out of all these tapes that you found, how many of those tapes contained actual visual depictions of you with the complainant, with Myra Gonzales or with the other children doing sexual acts with each other?"And he says, "Of those particular tapes, five." What does that tell you, Mr. Juarez?
[DEFENDANT]: That he found those tapes in my bedroom.
[PROSECUTOR]: You knew there were other tapes, didn't you?
[DEFENDANT]: Yes. But like I said, I thought he got all of them.
[PROSECUTOR]: You knew there were tapes in the garage, didn't you?
[DEFENDANT]: I assumed he recovered everything.
[PROSECUTOR]: But he never talked about going into the garage, did he?
[DEFENDANT]: No.
[PROSECUTOR]: He said he only — out of those tapes that he found, that only five of those had sexual acts, right?
[DEFENDANT]: Right.
[PROSECUTOR]: And you knew there were a lot more than that, didn't you?
[DEFENDANT]: Well, when he said —
[PROSECUTOR]: Yes or no? You knew there were a lot more than that, didn't you?
[DEFENDANT]: Yes.This evidence shows the police found five digital tapes depicting sexual activity pursuant to the search consented to by appellant. The evidence also shows that appellant knew more tapes existed. From this evidence, the trial court could have concluded that appellant knew only five tapes were seized by the police and only five tapes were being considered for suppression. Furthermore, the trial court was entitled to disbelieve appellant's equivocal statement that he would have "probably" asked for a jury trial had he known there was the possibility that sixteen more tapes would be admitted. Appellant testified that he understood the taped evidence was pivotal evidence "that we were just not going to be able to overcome in a trial." It is unclear how appellant could believe that more tapes would make this obstacle easier. To the extent appellant complains he only pleaded nolo contendere so that he could attempt to obtain a reversal on the motion to suppress, there was nothing to prevent appellant from going to trial on a not guilty plea and appealing any preserved evidentiary rulings. Under these circumstances, we cannot say the trial court abused its discretion in denying appellant's motion for new trial on the ground that he entered his plea under the mistaken belief that all videotapes were subject to the motion to suppress. Appellant's issues are without merit. We affirm the trial court's judgments.